The Business Rusch: A Warning To All Writers Who Need Help Indie Publishing

From the beginning, I have warned readers of this blog away from services that promise to publish your e-books for a percentage of the royalties. I haven’t done so in a while, and I really need to again.

Here’s why:

These businesses will harm you and your career. Best case, they’re run by well-intentioned idiots who have no idea how a business works. Worst case, they’re scams.

Most of the ones I’ve seen are scams.

This particular topic came up this week in a strangely roundabout way. I have my Facebook e-mail notifications shut off, but every now and then one slips through. On Thursday, I got one in which a friend of mine mentioned me and Dean in a comment on a bestselling writer’s post. I was rather stunned that my friend, also a bestselling writer, knew the bestselling writer in question. My friend’s a military sf guy, and she’s a romance author. Neither reads each other’s genre. But, I figured as I clicked on the link, that shouldn’t get in the way of friendship.

His comment was rather strange. It said that he had self-published five e-books and he would never, ever pay anyone 15% of those royalties. Then he told the bestselling romance writer to look at my blog and Dean’s blog for his reasons why.

When I clicked on the link, his comment was gone. There were 30-some other comments, but none from him, and none negative.

The post he was responding to was also strange. It purported to be from the bestselling romance author. She listed a service—which shall go nameless here—that was now e-publishing her backlist. She recommended everyone use it because “e-publishing isn’t as easy as everyone makes it out to be.”

Okay, fine. I know that for some people the learning curve is high and it frightens them. I know that others simply don’t have the time to spend on indie publishing. I figured she was one of those.

But as I scrolled through the comments, I noticed something else strange. She responded to every five comments by linking to that e-publishing service’s website. The language of her posts was odd as well. It was riddled with typos and other mistakes that she didn’t make anywhere else on her Facebook page.

And the posts didn’t sound like her.

I never did find my sf friend’s comment. Someone had deleted it. If anyone had responded to it by agreeing with my friend (and I have no idea if anyone did), then that comment was gone as well.

It wasn’t until I dug into that e-publishing service’s Terms of Use that I figured out what was going on. The bestselling romance writer didn’t write that post on her Facebook page. The e-service did. They handled all social media related to books for the author.

Here’s the thing that started me on a slow burn, however. The original post mentioned the e-service six times. It never once mentioned the title of any book by the bestselling romance writer.

Those of you who have writers among your Facebook friends should understand how fishy this is. After all, when we writers have a new book out—or a backlist book out—we mention it. We put a link to the place to buy the book. We might even mention who published it, but never ever do we mention the publisher without mentioning the book.

I had to scroll through nearly a dozen Facebook posts supposedly by this romance writer to find any mention of the titles that the e-service was publishing for her. I found countless mentions of that e-service, however.

Because I’ve never hired an e-service, and because I’m really anal about controlling my career, I would never let anyone post anything under my name. But when you sign with that e-service, you agree to let them handle all of your social media. Of course, you can still make the occasional post, but you never have to look at social media ever again if you don’t want to.

Until last week, I thought that idea little more than a shrug. If some people wanted someone else to Tweet in their name, fine. That’s their business. The problem is that whoever is running the social media for this bestselling author is promoting the e-service, not the author. And doing so in ungrammatical, misspelled prose.

This writer has multiple New York Times bestsellers published at more than three per year for at least twenty years. She has sold 35 million copies of her books. She can afford to pay someone a flat fee to put her out-of-print backlist up as e-titles. She can afford to pay someone with real experience to handle her social media for her.

Instead, she gave it all to a start-up for 15% of royalties earned.

That’s not the scary part. The scary part is the Terms of Use that she had to agree to in order to go with this company.

Let me repeat: she agreed to a Terms of Use. She did not sign a contract. She didn’t sign anything. To go into the website proper, you must click on the “agree” button for the Terms of Use. The only warning that writers will get about this horrible Terms of Use—and it is horrible—is on the FAQ, which states:

The Terms of Use look long and boring, but it’s essential that you read and understand them when you use [our company].

That’s a CYA line put in by lawyers. You’ve been warned. If you click “agree” on the Terms of Use without reading it, it’s your fault not theirs.

Why does this Terms of Use upset me so much?

Because I read it. And from the beginning, I started screaming at the computer.

The first point in the Terms of Use tells anyone that they cannot “access the Website or use the Service” without clicking “agree” or “accept” on the Terms of Use.

Then the next point says this:

The Service will evolve over time, and accordingly this Agreement may need to change over time. We reserve the right to change the terms of the Agreement at any time in our sole discretion. Changes to the terms of this Agreement will be effective on the date posted at the Website, unless we specify otherwise.

They promise to use their best efforts to notify clients that the Terms have changed, but the same point also state that it is the client’s responsibility to check the website’s Terms of Use to see what has changed. If you do not agree to the changes, then you can take your books off the site. Which sounds fine until you think about it.

Last year, I had a hell of a year. There were weeks when I barely had time to breathe, let alone double-check on a Terms of Use agreement that I had agreed to at the beginning of the year. And then I would have needed enough presence of mind to notice what was different because it sure as hell wouldn’t be pointed out.

So let’s say I missed the changes. Most people would. We would be subject to this in the same provision:

Your continued use of our Services after we post changes will constitute your acceptance of these changes.

And in the next clause, the one on termination, there’s this:

All provisions of this Agreement that, by their nature, are intended to survive the termination of this Agreement will survive.

The key phrase is “by their nature.” What the hell does that mean? It means that they don’t have to spell out which terms continue to apply. It means that in court they could argue that all the clauses in the contract, by their nature, still apply.

And then this POS gets even worse. Let’s say you do cancel. Do you get the e-pub or MOBI files of your e-book, the one that you paid for through 15% of your royalties? Nope. Those files are proprietary to this service.

By the way, the service doesn’t pay for copyedits or proofreading, and so you get charged for those services by a flat fee separately. If you read the bestselling romance writer’s supposed Facebook post, you can see why this service doesn’t do copy edits. But really, there’s no one at the service who knows how to design covers either, certainly not covers worthy of a New York Times bestselling author.

And speaking of that author, she’s spending thousands for a service she’s tied to at 15% of royalties earned. If she cancels, she gets nothing.

She might actually get nothing anyway.

Remember how it says up at the very top that the Terms of Use can change without notice? Well here’s a quote about royalty payments from farther down in the Terms of Use.

If you are not in breach of your obligations under this Agreement, for each eBook sold to an end user through the service, [this POS company] will pay you the applicable royalty set forth at [our website], net of refunds, bad debt, any applicable taxes charged to a customer or applied with respect to sales to a customer (including without limitation any VAT or sales tax) and our fee for managing the sale of your eBook through the Service (the “Management Fee”) as set forth at [on the FAQ page]. If your List Price for an eBook is higher than permitted by us or at any Retailer, we or that Retailer will be entitled to deem it modified so that it is equal to the maximum List Price permitted when calculating Royalties.

Let’s parse this thing.

1. Nowhere in this royalty portion of the agreement does it say what they really owe the writer. You have to go to another part of the website to see the 15%, and, as we now know, that can change at any time. There’s nothing to stop them from charging 100% of the royalties earned because if you, the author, don’t notice all the changes to the Terms of Use, including the FAQ (which you probably think you understand and never have to look at again), then you probably won’t withdraw your work in a timely fashion.

2. But let’s assume that the 15% remains 15%. It’s 15% of what? It’s 15% of the cover price that you theoretically set minus “net of refunds, bad debt, any applicable taxes charged to a customer or applied with respect to sales to a customer (including without limitation any VAT or sales tax) and our fee for managing the sale.” And before that there’s this lovely phrase, “If you are not in breach of your obligations under this Agreement.”

There are a lot of obligations for the writer under this agreement, and remember, those obligations could change at any time. They could say something like “We expect all writers who use our service to wear pink on every alternate Tuesday” and if you don’t, then you’re in violation of the agreement. Think I’m kidding? I’m not. I’m just using an outrageous example to gain your attention. But this service could add anything at any point to guarantee that you’re in violation of this agreement.

And if you’re giving them bestseller money to “manage” your books and then you decide to leave, they’re going to make sure you violate the agreement so that they can keep your money. Remember, they’re the ones who wrote this POS Terms of Use.

Then there’s this: If they don’t like the cover price you set, they can change it. If they’re not making enough at 15% of your books, they can raise your prices until they do make the kind of money they want.

Scared yet? You shouldn’t be. Because it gets worse.

There are these lovely clauses:

If we terminate this Agreement in whole or in part because you have breached your representations and warranties or our Content Guidelines, you forfeit all Royalties not yet paid to you with respect to the eBooks subject to the termination….Our exercise of these rights does not limit any other rights we may have to withhold or offset Royalties or to exercise other remedies.

Okay. Those Content Guidelines? They’re also on the website—in a different place than the Management agreement and the FAQ—and subject to change at any time. So again, the service can change the guidelines to hang onto your money after you’ve terminated the service.

But wait! It gets even worse. The service might have other unnamed rights to withhold or hang onto your royalties and/or to pursue other remedies. Since this is in the royalty portion of the Terms of Use, that means that the word “remedy” most likely means money. The service might determine, because you violated their content guidelines, that you have to repay all of the money they ever paid you as a remedy.

Still want to sign with a company like this? At least five New York Times bestselling romance writers have. And 700 people at last count clicked the “like” button on that bestselling romance writer’s Facebook page.

700 people.

My god. The scams multiply.

I could spend days on this Terms of Use. Hell, I could spend all of September parsing it for you.

But here’s the sad thing. Sadder than those 700 potential victims of this service, sadder than a writer I had respected signing on with this company.

Nothing in this agreement holds the e-publishing service to anything. They don’t have to publish your books. They don’t have to return your books. They don’t have to pay you. They have no liability if they leave out twenty-five pages in the middle of one of your books or put someone else’s name “accidentally” as the author of that book.

They have no liability if they rewrite the entire book and keep it under your name.

Here’s the truth, people. Scam artists proliferate in the places where the most vulnerable populations live. Right now, writers are vulnerable. Writers don’t want to learn how to run their business. They don’t want to pay any money up front if they can’t handle e-pubbing or POD on their own. They don’t want to pay flat fees – even if they can afford the fees. They want to give it to someone else and not bother their pretty little heads about it.

Well, those pretty little heads are getting royally screwed.

Think this company is alone? It’s not. And, in fact, unlike many of these companies, it’s pretty upfront about the variety of ways it can screw you. You can find out how they’ll screw you by doing exactly what they ask you to do in their FAQ. Here it is again:

The Terms of Use look long and boring, but it’s essential that you read and understand them when you use [our company].

If you read and understand the Terms of Use, you won’t use this company. That’s the bottom line. But this company is banking on the fact that you’ll do what most people do when faced with a long and complicated Terms of Use agreement that you must click on before entering the heart of a website: You’ll agree without reading or understanding the damn thing.

And then you’re already screwed.

Remember, you agree to this before you sign on with them, before you pick any projects, before you even send them an e-mail.

I had to poke around the website hard to find the Terms of Use without clicking on it. I found it. Most people aren’t going to go through the effort.

I’m appalled that a writer I respect has signed with this company and has given them permission to Tweet and post under her name.

I’m appalled, but I’m not surprised.

Because here’s the thing about this company. It is, as I said, up front about the agreement. So many writers are giving 15% of their royalties to e-service providers to format their books without signing any agreement or contract at all. It’s either done by e-mail or worse, by phone or in person.

If the whole thing breaks down, then it’ll be a he-said she-said in court.

Think these things won’t go to court? Of course they will. The services are too new right now for any case to hit any docket. By 2020, we’ll see a bunch of these cases, or we will know people who have sued such and such company and lost their writing time down the rabbit hole of legal troubles.

If you don’t have the time to self-publish and you don’t have the money to pay someone up front, then don’t do it. That’s so much better than signing with one of these scam artists.

And quickly, what should you look for in a fee service? One that will let you pay up front only for the services you need. The fee should be a flat fee. One price for copy edits, one price for the cover, one price for the uploading.

When that company is done uploading your book, then they’re out of the picture forever. You own the e-pub and mobi files. You get the royalties from each sale—the full royalties—directly into your bank account, no middleman.

If the technology changes, gosh darn it, you’ll have to hire the company again for a flat fee to give you the new supercool file for the new supercool book sale site.

You know how much you’ll pay. You know that you’ll never have to go back to that company again if you don’t want to. And you’ll own the e-files or the POD files or whatever else that company does for you. The copyedits, the proofreading.

Please, please, please, people. Be smart. Don’t sign with any company to design your e-books and handle your social media for a percentage of royalties.

And please, please, please read all the agreements that concern your books before you sign or click “agree” on anything.

Make sure you understand what you’re agreeing to, and if you don’t understand it, ask an uninvolved third party like a lawyer to help you understand. Don’t call the e-service and ask them to explain their agreement to you.

They’ll tell you not to worry your pretty little head about it.

And if you listen to them, the mistake is yours.

I write these blog posts in the hope that writers will become responsible for their own careers. Will you make mistakes? Sure, we all do. But I hope this blog will drive you away from the most costly errors.

I do take time from my fiction writing career to do these posts, however. I make the bulk of my money at fiction, so the blog must pay for itself. That’s why I have a donate button below. Please click on it if you got anything of value from this or previous posts.

And thanks to everyone who has supported me either through comments, e-mails, links, and/or donations. I appreciate it.

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55 responses to “The Business Rusch: A Warning To All Writers Who Need Help Indie Publishing”

Believe it or not, after “Don’t. Just, don’t.” the most important words in this post are these:

“…or we will know people who have sued such and such company and lost their writing time down the rabbit hole of legal troubles.”

Everybody listen to the nice blogger lady. Guys, I am an extremely experienced intellectual property attorney. I’ve sued infringers and contract-breachers ALL OVER THE WORLD. And I will tell you in so many words that if a controversy I am involved in hits a courtroom I feel that I have utterly failed in my duty to my client.

Now, that isn’t entirely fair. Every time I’ve sued somebody it was because they just would not listen to reason and I knew I was going to win and there was absolutely zero chance I was going to lose, or at least the lawyer’s equivalent of zero chance. (Think Fair Witness: “Right this minute, it’s white on this side. Won’t promise it’ll stay that way if I turn my head.”) And, more importantly, I knew it would be worth it to win.

But the reason I feel this way is that the sad and honest truth is this: Even when you “know” you’re going to win and you know that if you win you will both be awarded reasonable damages and you will be able to collect them – and them’s big ifs – being involved in a lawsuit is enormously frustrating. It’s distracting and it’s expensive and it’s depressing because you are just constantly being reminded of the conflict through hostile and impenetrable communications. You do not want to be in a lawsuit. I don’t mean, “You don’t want to be in one if you can reasonably avoid it.” I mean, “You want to move heaven and earth and possibly some undefined metaphysical fundament upon which they jointly rest to stay out of one.”

This is the essence of that old saying I quoted before: “Pay me a little now, or pay me a lot later.” And you won’t just be paying me. You’ll be paying yourself, or rather you’ll be losing time and money and motivation that could be vastly better spent. That is why I fight so hard when I negotiate licenses: I want the other party to know that if they don’t live up to their obligations they have no chance in court, and therefore except for the aforementioned irrational types, the temptation to breach and say “What are you going to do, sue me?” will simply not exist. That’s why you need me. (Well, not me literally. People like me.) Not in case you have to sue. To make it so ridiculously impractical to sue, or so frightening to contemplate suit in the first place that the other side has an extremely large incentive to deal fairly.

As I mentioned to you on Twitter, this situation gets even scarier. This company was at the RWA (Romance Writers of America) National Conference in July. They wore “industry attendee” badges, passed out cute, eye-catching swag with their company name (I have one and I later saw more swag in the “goody room,” free for the taking), introduced themselves to tons of romance authors, and made their company sound great–a one-stop shop for epublishing without the hassle.

And with the BNA as a client, they have it made as far as reputation. The BNA was a featured speaker at the 2010 RWA conference and everyone in the romance genre recognizes her name and status. Romance authors would default to trusting them.

Please let me know if there’s anything I can do to help spread the word about this. It sickens me that my fellow romance authors could be taken in by them.

I talked with them at breakfast one morning and they sounded great, helpful, author and service oriented. If they’d asked to do a guest post on my blog about what e-services companies can do to help authors, I might not have checked into them deep enough to uncover these problems before saying yes. So I’m feeling like I dodged a bullet. Yikes!

Hello Kristine and all commenters,
Thanks for the informative post and interesting discussion. I might have missed it above, but here’s a view from an introverted author who’s not an expert on PR and marketing: There are reliable and trustworthy places that can help authors with this. I’m tempted but cannot afford their plans. It’s all I can do to pay for my website upgrades and cover designs and eBook formatting (yes, I know, I can do the latter myself, but it’s inexpensive and allows me more time to write). In fact, I’d give my books away or sell them on the cheap, but I need to recover these costs.
My take is that some of these reliable and trustworthy places should offer a pro bono option. It’s akin to the difference between buying and leasing a car and many other things (e.g. dealing with lawyers). If a firm is vetted, what’s the problem? Maybe the problem is with the idea of pro bono?
Nevertheless, I certainly wouldn’t let any firm, no matter how reliable, write my content. How and what I write is my brand.
All the best,
Steve

“Pro bono” is a shorthand form of the Latin phrase “pro bono publico,” which of course translates to “for the public good.”

Because access to the courts is a key element of citizenship in a democracy, and because lawyers are expensive experts, we are expected to provide a certain level of service to the members of the public who cannot afford our services pro bono. This is not for the benefit of the people who receive the services: it’s for the benefit of society. Because society works better when people believe that they have some minimal access to the legal process even if they don’t have a lot of money. And I both donate to legal aid funds and provide general information to members of the artistic community in that proud tradition.

However, saying that a for-profit private company which provides a service which nobody actually needs is, in my opinion, rather an abuse of the concept. Sure, it wouldn’t hurt for them to do a little charity work – which is what this would be – but saying that they are somehow obligated to do so is pushing it way too far, again in my opinion. Maybe that’s reading more into your “should” than you intended, but that’s what I took away from your use of the word.

Wow. Interesting reading for someone from a small country like Finland (pop. 5 million). I think the circles here are so small and monocultural that you couldn’t get away with a scam, you’d lose your reputation forever. And all the legal stuff that you have to go through in America! Scary, methinks.

As for the percentage vs. flat fee debate and the necessity of/no need of outside help… Everything is changing at such a rapid pace, that we’ll go through several permutations. I therefore think that the absolute minimum requirement for authors is to retain all their rights. And the contracts should be reversible. These are the founding principles of our small company.

Then it’s up to the service providers to deliver such cost-effectiveness, that the authors i.e. the future decision makers, want to cooperate.

It may be important for writers to understand clearly the differences between a publishing service that is doing everything for a writer under those terms, and a distributor such as the major ebook selling sites, which also use those same terms. The risk is significantly greater for a “full-service” operation to take those terms and use them in every twistable way, than a site who is merely taking an ebook already prepped for release and making it available to the public. Reputable businesses use those terms, but the circumstances are way different. One must be extremely careful and diligent in watching out for scams that would use them to their own evil ends.

I am going to correct you on one point. The distributors use some of those points, not all, and not all together. Plus they have other limitations in their Terms of Use that make these points less offensive (harmless in most cases) rather than harmful as they are here.

I didn’t go through this entire e-service’s Terms of Use. As CE pointed out, things later on make the terms even more egregious than the things I quoted. It was just getting too cumbersome (and heartbreaking) to continue.

What I also find horrifying is that the sight of these six NYT bestselling authors could serve to reassure other authors that the site is a “safe” harbor them. It’s like a celebrity endorsement. The site must be rubbing their hands in glee!

I ventured into publishing in the early to middle 90’s. Found the water cold and digitally published when it wasn’t popular. It was hard, but it forced me to learn the business and for that I’m so grateful. Around 2000, I was working with a medium trad press. Had your basic, not wonderful but standard contract with them. I didn’t like the terms, but being with them boosted my digital sales, gave them “credibility,” so I sucked it up.

Then they came out with this “wonderful” new contract. I studied it, found it not even close to wonderful. I was on an email loop with for authors and my editor and asked a few questions. My editor, I kid you not, told me to not worry, just drink some wine and relax, that they had my back. Yeah, and were preparing to stick a knife in it!

I did some math and posted it. They didn’t like that and some supposedly “wiser” heads shouted me down. I pulled a proposal at that point. I already had a contract for one last book. Just before its release, they remaindered my backlist. And did all they could to kill sales. It made me laugh, because I’d retained other rights and just went around them. And kept the advance which of course, didn’t earn out. I had a solid relationship with a small press, so I just moved on. While some authors supported my choices, others have not.

Like you, I won’t name the publisher, but I know authors continue to publish with them, some through agents (which rather boggles my mind).

I can’t thank you enough for your clear sighted analysis in these blog posts. I come here to learn and have had confirmed stuff I long suspected. And I am so very grateful for the CHOICES we now have available to us. About, dang time. (wry grin)

I’ve never understood the attraction (or value) of such. So-called “celebrities” (nowadays famous only for being famous, not for actually accomplishing anything noteworthy) are, obviously, endorsing a service or product ONLY because they’re being PAID to.

I utterly ignore such pitches. And I have to wonder about anyone who does. Are they that dense and stupid? Unfortunately, the answer must be yes, since “celebrity endorsements” are so ubiquitous. Snooki selling baby stuff… or anything else? Pass.

You have publishing houses, agents, agent-publishers and now Self-pulishing services all who want a piece of your soul!

It’s sailing into uncharted waters where pirates lurk and the are rocks everywhere. There’s going to be a lot of trial and error as the publishing industry shakes out over the next couple of years. Is there an association or soime type of group of self-publishing authors that can speak for us? Like a co-op in which authors help other authors avoid all the mines?

Another good post, Kris and a reminder that self-publishing isn’t for the faint-hearted….

What leaves me utterly gobsmacked isn’t the POS-TOS. As you & others have mentioned, the Internet is rife with scam artists. It’s that none of the “best selling authors” even thought to contact an attorney to read and advise. What would it cost, $500? I’m sure that, at the sales levels that get you on the NYT best-seller list, that’s affordable.

I recently put my first novel up on Amazon, B&N, and Smashwords. The formatting wasn’t that difficult in absolute terms. Compared to writing the novel, getting beta feedback, having it edited (yes, it got edited by a real editor), revision after revision, the eBook formatting was almost no effort. I’ve seriously considered hanging out a shingle for flat-fee formatting, but even that seemed icky because it’s not that difficult. OK, I’m a typesetting geek, and I built an ePUB by hand once just to do it, but the only secret about it is “attention to detail.” It takes being willing to open that eBook and go through it one more time to catch any formatting goofs.

But like you say, and that’s probably the best piece of writing advice on the internets, you have to treat this like a business. I know I’d have a lawyer look over a contract from an established publisher if I were offered one, and would probably turn it down if (as expected) they wouldn’t make reasonable alterations. I now know what’s involved in publishing a decent book, what parts I can handle myself, and what I need to outsource. I’m in this for the long-haul, and I can work out the promotional kinks given time.

“I’ve seriously considered hanging out a shingle for flat-fee formatting, but even that seemed icky because it’s not that difficult.”

Go ahead. It’s a legitimate way to add value to a product (book) to offer a service for a flat fee to do something you do well (and quickly) for someone who chooses to use a service instead of learning to do it himself (investing a fair amount of time in something he might not do on a regular enough basis to be worth it to him).

I wired a switch into an overhead lighting installation’s cord so that I could easily turn the light on and off from bed. It took me quite a bit longer than it would have taken an electrician (though considerably less than an electrician’s one-hour minimum). I chose to use some of my time instead of some of my money.

On other occasions, I have had a handyman come in and do a bunch of jobs at a time, spending money efficiently to get a lot of little jobs done that would have required me to brush up on a bunch of skills. Opposite choice – spend money to save time.

There are plenty of people who WILL charge for this service, some of them requiring a percentage rather than a flat fee.

Geek-developed or not, your services would add to the pool of available freelancers for the non-geek-oriented, the lazy, or the busy. Only you could decide how much to charge – and the book authors could decide whether to hire you based on your offer.

Thanks. I’m keeping it in my back pocket right now, just in case I find myself jobless. I suppose what I should do first is to generate a non-formatted MS Weird file, as a worst case, and see how long it takes to make it into a clean eBook. Then I’ll know what to charge, based on the word/chapter/scene count and so forth, and can offer “clean file” discounts for those who make less work for me. 😉

I’m obviously not as smart as you, I guess, and would really like to have the name of this company…. I’ve had a recent relationship with a company regarding my backlist that leaves a bad taste in my mouth….

Please could you let Writer Beware know about this, including which company it is? They run a service warning writers of all kinds of scams relating to publishing. If they haven’t already heard of this, I’m sure they’ll be very interested to. Sorry I haven’t included a link, am posting this on my phone and am a but inept. If you Google Writer Beware Victoria Strauss, that should get you there.
Regards,
Camilla

I wonder if anyone is going to contact those authors about that they really signed. On the other hand, the damage to them is already done. And if they didn’t care to read how the TOS could hurt them before, why should they care now?

At least until the problems start. And it’s only a matter of time.

This will get ugly. Very veeery ugly. Ugly enough to destroy careers for those who refuse to use the intelligence they show in writing towards their business. The author landscape is going to look very different 5-10 years down the road because of self-inflicted career torpedos.

Maybe your post will help warn a few authors away. Give some authors more points to think over. Save a few? Personally I”m hoping it will save a lot. As you said, this isn’t the only ‘service’ doing this. More will appear in the future. It’s going to get worse from here.

You’re right, JA. The author landscape will look very very different ten years from now. Some will torpedo their careers, and others will hire someone to do it for them. I’m so appalled by this. And you’re also right that it will get worse in the future. The best thing we can all do is urge our friends to learn business. Anyone with a bit of sense who read that Terms of Use wouldn’t go any farther with that company. But the company banked on ignorance–literally.

I hope you do contact those authors and send them links to this blog post. They might have made a BIG stupid mistake, but you can stop them from continuing to give their books to this service, thus preventing future mistakes.

Sadly, my friend tried to warn these authors and so did a few others. THey didn’t get through to the actual writers. I don’t have anything but Facebook connections, so I can’t do much more than that. I hope the post goes viral, and maybe they’ll recognize something…

There are dozens of reputable small digital publishing houses, some of which have been operating successfully since the late 1990s, who are never even considered when someone like this author doesn’t want the hassle of self-publishing. Our company has existed for 12 years, long before Amazon “invented” the ebook.

Will they give the author 85 of cover%? No, of course not. However, the average royalty paid the author is 40% of net, and many pay 50%. And they’ll do all the copyediting and cover design and some will even provide on-demand paperback if those rights are available.

And contrary to the myth, they do provide marketing support. The one thing most of them don’t do is pay advances.

I’ve read at least a dozen stories from authors who ended up self-publishing because their agent allegedly shopped a manuscript “to everybody.” Well, guess what—those agents likely never even considered contacting any of these publishers.

I’m not soliciting anyone; I have a slew of talented writers already. As I said, it just frustrates me when people get scammed by the kind of “service” described here because the fact there are viable alternatives to the “legacy” and self-publishing has gotten lost in the noise.

You’re right, Elizabeth. There are alternatives. Honestly, I don’t like services that handle the money and pay a percentage. But if the contract is good, then the writer can make her own decision. All contracts need to be vetted by an IP attorney. You must know what you’re signing.

As I said to CE, though. It’s better to go with a flat fee service. You know what you pay for up front, you make the money directly, and you’re in control of your career, even if you haven’t put out much time putting the book together. It’s so much better. And safer for the writer.

Like any tool, Facebook is just fine, Randy, so long as you know what it is and what it’s limitations are. I wouldn’t have found this at all without Facebook. I’m rather fond of the service, but I treat it like a convention or some place public. I never put up anything I wouldn’t say at an SF convention or in a public venue. Same with photos, etc. Early on, I put up a lot of pictures, but now, I link to them. Still, I learn a lot of cool things and stay in touch with people. It has become a third way of contacting people via the message service, and it’s quite effective in finding folks I had lost track of.

But yes, the cautionary tale is there. Don’t take any old random advice from Facebook (or anywhere) without checking it first.

This makes me feel ill reading this article. How many writers will get caught up in scams like this one just because they want to avoid learning to do it themselves or are afraid of out-of-pocket expenses? Even one is too many and I’m sure the number is way higher.

I found the company in question with little trouble and my original intention was to just skim the contract myself, but the more I read it the more it resembled a horror movie; I was appalled but just couldn’t look away. The lawyer who wrote it can congratulate himself on reaching a new level of sleaziness.

Wow, just wow. The level that some people will sink to just to make a buck is truly amazing. I couldn’t find one redeeming clause in the whole contract. I especially like the part where they give themselves all the free books they want. The friendly purple color is just a disguise!

I was toying with the idea before, but this just helps me make the decision; I’m writing my own contracts from now on.

Great post Kris, I hope your friend isn’t too crushed when she eventually realizes what it is she agreed to.

Plus the website and covers are ugly, aren’t they, Randall? It’s an amazing grab of all kinds of things. I figure anyone who writes an agreement like that shouldn’t be allowed in the same city as me, let alone handle my career….

Our Gracious Hostess very politely did not name the miscreant(s)*; thus, neither will I. Sometimes I can maintain a modicum of politeness.

I will not maintain any for that particular e-publishing service beyond not naming it. For example, the terms of service are inconsistently numbered (jumping from 8.1 to 9.2), indicating that they were either not proofread or are hiding stuff in the middle of a gap caused by one of those mysterious HTML errors (sadly, either is possible given the infelicity of legal writing and poor organization of the TOS). The real fun, though, is that the last third of the TOS essentially means “anything or right you thought you had retained based on the first two-thirds of this TOS is either ours anyway or we’re going to make it impossible for you to assert.” The warranties and indemnities are more than pernicious; the “miscellaneous” clause at the end is not merely miscellany, but subtly and substantively modifies some of the preceding parts; I won’t go on.

That said, I have to mildly disagree with one implication of Our Gracious Hostess’s post. There are some potential circumstances in which a percentage-going-forward deal is fair to everyone, as opposed to pre-publication-flat-fee. However, that’s rare… and should almost always be with a rather low cap on the total (e.g., “15% of net revenues to a maximum of $1,150 or twelve months after first publication, whichever comes first”) — absent some other continuing business relationship — and should never include granting control over the author’s intellectual property other than the text of the work itself. In this particular instance, for example, if the social media “consultants” at that particular vendor post libellous comments on the author’s website, she’s potentially liable… and it will damage her trademark and branding, and possibly cause her book(s) to go out of print. That’s not to say that authors should never have assistants; it’s only to say that authors should choose them with far more care than this TOS makes possible.

* Among whom, I must reluctantly include Big Name Romance Author; as a highly experienced writer, BNRA — or, at minimum, BNRA’s advisor(s) — should have known better. If nothing else, failure to do quality control on those social media postings harms the value of BNRA’s trademarks. Unfortunately, given the disdain for parts of intellectual property law that are not called “copyright,” I think it unlikely that anybody even thought about that…

CE, thanks for that. I know you’ve read the whole text. I decided I had to quit taking it apart at one point before I pulled out all of my hair. [sigh]

As for percentage services, yeah, you can do anything with the proper limitations. But in a blog like this, it’s easier to say avoid them all and pay a flat fee than it is to use all the various qualifiers that we need to make the service work. And even then, you have to watch out for those miscellaneous clauses that say, in effect, never mind all that came before. So stick with flat fees. It’s just safer.

As for letting someone else handle your social media/contacts, wow. I really hadn’t given it much thought except for those celebrities who Tweet something stupid, then hire a PR firm to prevent that. I hadn’t thought about the downside, the folks who insult the clients, the folks who can’t spell, the folks who promote themselves instead. What a nightmare. [shakes head]

“As for percentage services, yeah, you can do anything with the proper limitations. But in a blog like this, it’s easier to say avoid them all and pay a flat fee than it is to use all the various qualifiers that we need to make the service work. And even then, you have to watch out for those miscellaneous clauses that say, in effect, never mind all that came before. So stick with flat fees. It’s just safer.”

This attitude refuses to acknowledge that some aspiring indy writers that could find your advice helpful may have severe difficulty paying up front capital for these services. Maybe they should get a loan from their parents. (sorry that last line was a little unfair, but I think it might drive the point home concisely.)

I fear that by not acknowledging this, the people that I hope find your blog post via the link I made in the writers forum I frequent may feel excluded from its full intended value as a result of their financial position.

You make it sound like I’ve never been poor, Richard, or a struggling writer. I do know that if you save a dollar a day in a jar instead of spending it on coffee, you’ll have five dollars at the end of the work week, and twenty dollars at the end of the month. If it costs $100 to do a cover, then within five months, you’ll have saved enough to pay the flat fee. Stop being in such a hurry, learn how to manage money, and pay up front for services. Yeah, it means making some sacrifices. It might mean walking three miles to work instead of taking the bus, like I used to do to pay a lawyer a retainer so that I could get a divorce, but you can do it. The key is patience.

I like the wording of the hybrid clause very much – and would consider doing something like that in cases like the following:

1) I don’t have enough money to pay a cover designer. I would not want to give them a portion of my IP for long, but I wouldn’t mind giving them a percentage with a cap and an end date – thus possibly getting a better cover than I could afford at publication time IF the designer wanted to benefit from the book. This would work well for both of us if the book took off.

2) A similar arrangement might work for a contract with someone to read for the audiobook or act for a staged reading.

3) Ditto a ‘production’ in audio of a play.

It never occurred to me until I read this (thanks!) that it didn’t HAVE to be all or nothing, percentage or flat fee.

One should be very careful with wording, run it by one’s attorney, make sure it was one’s contract – and not the other person(s)’s contract (so no buried bombs), but it IS an option.

Kris, you are absolutely right. It’s downright scary how many people automatically click on the “I agree to this TOS” box without even *glancing* at the TOS. My dad is an attorney; reading through the fine print before you sign is one of those things he drilled into all of us at a young age.

For example, Facebook’s TOS, last time I checked, says that they retain copyright to any pictures/stories/vidoes, ect. that are uploaded to their site. Most people don’t know that. I know individuals who have learned that the hard way when they stumbled across their children’s pictures on a brochure in a doctor’s office–or the guy whose friends told him his wife’s picture was being used on a link to an adult-ish site. And that’s just pictures.

Now, granted, I’m not an attorney myself, but I thought the whole purpose of a contract is to establish both sides’ benefits, responsibilities, and liabilities or lack thereof. Sure, we put up with crappy TOS agreements to use certain websites or programs in daily life, but to sign a terrible TOS that actually involves your money and affects your livelihood? Seems to me, that way lies madness.

Exactly, E.R. Sometimes clicking a TOS doesn’t really matter much to your daily existence, although more and more it does. You should’ve seen me parsing the YouTube TOS before putting some videos that I don’t care that much about up there. Every time I sign with a new service for whatever, I print up the TOS and read it on the page. I see things I don’t see on the screen. This one, though. Wow. It’s egregious.

If you’re into photography at all, and spend any time on photography forums you will be warned about TOS on places like Facebook, and contest entry rules,that claim all rights to your photo just by you entering or posting it. They claim it is so they can display your photo at all, but then you have stories like the ones E.R. Paskey mentioned that somehow never make it into the news. If these writer’s “help” sights are copying TOS terms from sites like Facebook, writers will have no guarantee about who may be allowed to display or rewrite their story.

They might be copying or, in this case, developing their own. I thought this was copied from other places, but it looks too organic for that. One of the site’s originators had a biz in the dot.com boom. I wonder if the Terms of Use comes in part from that. (The biz failed, of course.) [sigh]

Forgot to mention that Facebook eventually changed privacy settings to allow people to opt out of 3rd parties getting a hold of their photos, but even then, the only way anybody found out about it was through word of mouth. (And I’m fairly certain there are people out there who STILL haven’t checked that little box because they have yet to discover it’s an option.)

TOS are often lifted wholesale by lazy website developers. This often has hilarious results: at least one major photographer’s magazine (Not photography magazine, photographer magazine) has been called out for re-using a TOS that called for photographers to surrender copyrights in exchange for entering a contest. When they were called out, they immediately changed the TOS and apologized profusely, but it’s a good example of how you can’t trust TOS just because you trust the people who own the site.

Kris, I think you now officially have the most eggregious “writer got screwed” story I’ve ever run across. Holy shit. I’ve not seen a Hollywood contract or a gaming industry contract that’s that bad–and those industries are bad. Like, they’ll claim the sexual rights to your housepets as collateral for your eternal soul bad. Wow.

It also reminds me of green M&Ms. In the mid 80s, Van Halen got a lot of bad press for demanding a bowl of only green M&Ms in their contracts–prima donna shenanigans, the press called it. Well, they’re a local band and I got to work as a video tech on a couple gigs with some of their members, and got to hear the real story:

They got so sick of venues and promoters not living up to the contract that they inserted the green M&M clause (and other similar clauses) so they’d have quick and easy confirmation that the responsible parties had read and understood every line of the contract. If they didn’t, they had the right to cancel the gig–and they exercised the option more than once.

It impressed on me (for the first time) how important it is to read and understand every single clause of every single contract I sign. Someone might stick green M&Ms into it, or something worse. And, from time to time, I’ve stuck clauses like that in contracts with business partners I didn’t trust, and it’s occasionally saved my butt.

I feel bad for people when they get screwed–heaven knows I’ve gotten screwed a few times–but in the end, this isn’t like a home invasion, where the bad guys seek you out and bust down your front door. If you get screwed by a contract, you’ve got nobody to blame but yourself. You signed it. You could have negotiated it, or walked away. It really does piss me off, though–when the idiot quotient is that high, it really debases the market. Grr.

Thanks for the post, Kris. I’ll pass it along, hopefully it’ll save some people from setting themselves up for a looting.

Thanks, Dan. I think. I had read the green M&Ms thing before. Lots of business savvy performers do that very thing on contracts, particularly Hollywood contracts. It’s really a great hedge.

I’m hoping that by blogging about this, we’ll get a few people who will not sign with these companies. Some people are simply dumb about business, some are too trusting, and others are just frightened. I hope that the frightened and the trusting will learn a few things.

Maybe I’m a bit harsh here, but it sounds to me like people who sign with companies like this are looking to have a lot of the “hard stuff” taken off their plates, and they’re just gullible enough to think that there’s no way these nice people would screw them.

Like you, I’m far too anal to give over control of my work to folks like that, but a lot of writers aren’t. They fell they can just go to focus on writing. Writers who don’t get that this is a business are setting themselves up for a big fall.

I’m really not sure what it is, RD. I know that two of the people who “signed” with this service consider themselves tough businesswomen. So I’m not sure what happened. I think it’s very sad that these companies even exist and that so many people are being taken advantage of.

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